ORDER :

SANJIB BANERJEE, J.

This is another instance of a borrower seeking to delay the inevitable and cling on to the property furnished by way of security despite having failed to repay the debt.

2. Indeed, this borrower does not recognise his status as a borrower and seeks to make a distinction between the persons who obtained the credit facilities from the secured creditor and the petitioner herein who furnished the security. In law, however, there is no distinction as even under the Contract Act, 1872 the liability of a guarantor is co-extensive with that of a borrower. Further, the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 makes no distinction between a principal debtor and a guarantor and clubs the two together within the fold of the definition of "borrower".

3. The facts are not in much dispute. A loan was obtained from the respondent secured creditor in 2006 to the tune of Rs.55 lakh. A land measuring approximately 3.36 acre was furnished by way of security. The borrowers failed to repay the loan as per the terms and upon the account turning NPA, the secured creditor adopted measures under the Act of 2002. On August 1, 2007, a notice was issued under Section 13(2) of the Act calling upon the debtors to repay a sum of Rs.65,11,681.50p that was outstanding as at July 31, 2007. Upon no repayment being made, a possession notice was issued on September 4, 2008 under Section 13(4) of the Act. The authorised officer of the secured creditor issued a sale notice on October 13, 2010 fixing the date of auction on November 18, 2010.

4. In between, there was a one-time settlement offer that was made by the bank and the borrowers, true to form, played ducks and drakes with the secured creditor after depositing a paltry amount.

5. The secured asset was valued by the secured creditor in May, 2009. The valuation indicated by the government approved valuer and chartered engineer was Rs.1.50 crore as the fair market value and the distress sale value was Rs.1.20 crore.

6. No further valuation of the property was made immediately prior to the sale notice being issued in October, 2010. It is the perceived delay of about 17 months between the preparation of the valuation report and the sale notice that the petitioner sought to urge as his principal ground to assail the auction sale of the property. The property was sold at Rs.2.07 crore. The auction-purchaser is the third respondent herein.

7. There does not appear to be any credible grievance that the petitioner herein was not aware of the initial notice issued by the secured creditor under Section 13(2) of the Act or of the subsequent notice of possession issued under Section 13(4) of the Act. Indeed, it is evident that the petitioner was aware of the impending sale as the petitioner had due knowledge of the sale notice dated October 13, 2010. It is not even the petitioner's case that after noticing the figures indicated in the sale notice of October 13, 2010, the petitioner protested to the secured creditor or its authorised officer regarding the valuation of the land or the reserve price indicated therein. The petitioner did nothing, waited for the auction to be conducted and, thereafter, challenged the auction sale by way of proceedings before the Debts Recovery Tribunal. Even though the principal plank of the petitioner's grievance was that the property had been sold at a gross undervalue, the petitioner did not put even the amount at which the sale was conducted on the table to show the petitioner's bona fides. It must also not be lost sight of that the petitioner failed to abide by the initial notice of demand issued under Section 13(2) of the Act and even the subsequent one-time settlement offer by the bank in early 2010. The wild goose chase that the petitioner wants to engage the Court in, is of the petitioner not really being the beneficiary of the credit facilities and the petitioner having been a party to the transaction only